SK 



Issued June 10, l'J20. 
UNITED STATES DEPARTMENT OF AGRICULTURE, 
DEPARTMENT CIRCULAR 102. 



Contribution from the Office of the Solicitor. 

ROBERT W. WILLIAMS. Solicitor. 



THE MIGRATORY BIRD TREATY. 

Decision of the Supreme Court of the United States sustaining the constitutionality 
of the Migratory Bird Treaty and Act of Congress to carry it into effect. 



Supreme Court of the United States. 
No. 609— October Term, 1919. 



Appeal from the District 
Court of the United States 



The State of Missouri, appellant, 

vs. 

Ray p. Holland, United States [ for the Western District of 
Game Warden. J Missouri. 



[April 19, 1920.] 

Mr. Justice Holmes delivered the opinion of the Court. 

This is a bill in eciuity brought by the State of Missouri to pre- 
vent a game warden of the United States from attempting to en- 
force the Migratory Bird Treaty Act of July 3, 1918, c. 128, 40 
Stat. 755, and the regulations made by the Secretary of Agriculture 
in pursuance of the same. The ground of the bill is that the statute 
is an unconstitutional interference with the rights reserved to the 
States by the Tenth Amenchnent, and that the acts of the defendant 
done and threatened under that authority invade the sovereign right 
of the State and contravene its will manifested in statutes. The 
State also alleges a pecuniary interest as owner of the wild birds 
within its borders and otherwise, admitted by the Government 
to be sufficient, but it is enough that the bill is a reasonable and 
proper means to assert the alleged quasi sovereign rights of a State. 
Kansas v. Colorado, 185 U. S. 125, 142. Georgia v. Tennessee Cop- 
per Co., 206 U. S. 230, 237. Marshall Dental Manufacturing Co. v. 
Iowa, 226 U. S. 460, 462. \ motion to dismiss was sustained by 
the District Court on the ground that the Act of Congress is con- 
stitutional. 258. Fed. Rep. 479. Ace. United States v. Thompson, 
258 Fed. Rep. 257; Vnited States v. Rockefeller, 260 Fed. Rep. 
346. The State appeals. 

8970-20 



^ ' ^ ^SSd^onogrrttV^ 



2 Drpaiiiucnl CArcular 10'2, T. S. Dept. of Agriciiltnre. 

On December s. I'M 6, a treaty between the United States and 
Great Britain was prochiinKMl by tlie President. It recited that 
many species of birds in their annual migration traversed many 
parts of the United States and of Canada, that they were of great 
value as a source of food and in destroying insects injurious to 
vegetation, but were in danger of extermination through lack of 
adequate protection. It therefore provided for specified close sea- 
sons and protection in other forms, and agreed that the two powers 
would take or propose to their lawmaking bodies the necessary 
measures for carrying the treaty out. 39 Stat. 1702. The above- 
mentioned act of July o, 191 S, entitled an act to give effect to the 
convention, proiiibited the killing, capturing or selling any of the 
migratory birds included in the terms of the treaty except as per- 
mitted l)y regulations comjiatible with those terms, to be made by 
the Secretar}' of Agriculture, llegulations were proclaimed on July 
31, and October 25, 1918. 40 Stat. 1812; 1863. It is unnecessary 
to go into any details, because, as we have said, the question raised 
is the general one whether the treaty and statute are void as an 
interference with the rights reserved to the States. 

To answer this question it is not enough to refer to the Tenth 
Amendment, reserving the powers not delegated to the United 
States, because by Article II, section 2, the power to make treaties 
is delegated expressly, and by Article VI treaties maile under the 
authority of the United States, along with the Constitution and 
laws of the United States made in pursuance thereof, are declared 
the supreme law of the land. If the treaty is valid there can be no 
dispute about the validity of the statute under Article I, section 8, 
as a necessary and proper means to execute the powers of the Gov- 
ennnent. Tlie language of the Constitution as to the supremacy 
of treaties ])eing general, the question before us is narrowed to an 
inquiry into the ground upon which the present supposed exception 
is placed. 

It is said tliat a treaty can not be valid if it infringes the Consti- 
tution, that there are limits, therefore, to the treaty-making power, 
and that one such limit is that what an act of Congress could not 
do unaided, in derogation of the powers reserved to the States, a 
treaty can not do. An earlier act of Congress that attempted by 
itself and not in pursuance of a treaty to regulate the killing of 
migratory birds within the States had been held bad in the District 
Court. United States v. Shauver, 214 Fed. Rep. 154. United 
States V. McCiiUagh, 221 Fed. Rep. 285. Those decisions were 
supported by arguments that migratory birds were owned by the 
States in their sovereign capacity for the benefit of their people, and 
that under cases like Geer v. Connecticut, 161 l\ S. 19, this control 



was one that Congress ha 
ment is supposed to app 



y now wi^ iQft^lJil forci 

OCT 3 1933 



ce. The same argu- 



i \Ci-2 0Ci/ Migratory Bird Treaty. 3 

^ Whether the two cases cited were decided rightly or not they 
.•can not be accepted as a test of the treaty power. Acts of Congress 
tare the supreme hiw of the kind only when made in pursuance of 
~~the Constitution, while treaties are declared to be so when made 
under the authority of the United States. It is open to cjuestion 
whether the authority of the United States means more than the 
formal acts prescribed to make the convention. We do not mean 
to imply that there are no c{ualifications to the treaty-making power, 
but they must be ascertained in a different way. It is obvious that 
there may ha matters of the sharpest exigency for the national well- 
being that an act of Congress could not deal with but that a treaty 
followed by such an act could, and it is not lightly to be assumed 
that, in matters requiring national action, "a power which must 
belong to and somewhere reside in every civilized Government" is 
not to be found. Andrews v. Andrews, 188 U. S. 14, 33. What was 
said in that case with regard to the powers of the State applies 
with equal force to the powers of the nation in cases where the 
States individually are incompetent to act. We are not yet dis- 
cussing the particuler case before us but only are considering the 
validity of the test proposed. With regard to that we may add 
that when we are dealing with words that also are a constituent 
Act, like the Constitution of the United ^States, we must realize that 
they have called into life a being the development of which could 
not have been foreseen completeh' by the most gifted of its begetters. 
It was enough for them to realize or to hope that the}- had created 
an organism; it has taken a century and has cost their successors 
much sweat and blood to prove that they created a nation. The 
case before us must be considered in the light of our whole experi- 
ence and not merely in that of what was said a hundred years ago. 
The treaty in question does not contravene any prohil)itory words 
to ])e found in the Constitution. The only question is whetlier it is 
f()rbi(kk^n by some invisible radiation from the general terms of the 
Tenth Amendment. We must consider what this countiy has l)e- 
come in deciding what that amendment has reserved. 

The State, as we have intimated, founds its claim of exclusive 
authority upon an assertion of title to migratoiy birds, an assertion 
that is embocUed in statute. No doubt it is true that as l)etween a 
State and its inhabitants the State may regulate the killing and sale 
of such l)ii'(ls, but it does not follow that its authority is exclusive 
of paramount powers. To j)ut the claim of the State upon title is 
to lean u])on a slender reed. Wild birds are not in the poss(^ssion 
of nnyone, and possession is the ])egiiniing of owniM'ship. The 
wlioh^ foundation of the State's rights is the presence within their 
juris(hction of birds that yesterchiy had not arrived, to-morrow may 
be in anotlier State, and in a week a tliousand milt^s away. If we 



4 Department Circular 102, U. S. Dept. of Agriciiltiirr. 

are to be accurate we can not put the case of the State upon higher 
ground than that the treaty deals with creatures that for the moment 
arc within the State borders, that it must be carried out by officers 
of the United States within the same territory, and that but for the 
treaty the State would be free to regulate this subject itself. 

As most of the laws of the United States are carried out within 
the States and as many of them deal with matters which in the 
silence of such laws the State might regulate, such general grounds 
are not enough to support ^lissouri's claim. Valid treaties of course 
"are as binchng witliin the territorial limits of the StiJtes as they 
are effective throughout the dominion of the United States." Bald- 
win V. Franks, 120 U. S. 678, 683. No doubt the great body of pri- 
vate relations usually fall within the control of the State, but a 
treaty may override its power. We do not have to invoke the latter 
developments of constitutional law for this proposition; it was recog- 
nized as early as Hophins v. Bell, 3 Cranch. 454, with regard to 
statutes of limitation, and even earlier, as to confiscation, in Hare 
V. Hylton, 3 Dall. 199. It was assumed by Chief Justice Marshall 
with regard to the escheat of land to the State in Chirac v. CTiirac, 
2 Wheaton, 259, 275. Hauenstein v. Lynliam, 100 U. S. 483. Oeo^- 
roii V. Rigfjs, 133 U. S. 258. Blythe v. Hinckley, 180 U. S. 333, 340. 
So as to a limited jurisdiction of foreign consuls within a State. 
^Vildenhus' Case, 120 U. S. 1. See Ross v. Mclntyre, 140 U. S. 453. 
Further illustration seems unnecessary^, and it only remains to con- 
sider the application of established rules to the present case. 

Here a national interest of veiy nearly the first magnitude is in- 
volved. It can be protected only by national action in concert with 
that of another power. The subject matter is onl}- transitorily 
within the State and has no permanent habitat therein. But for the 
treaty and the statute there soon might be no birds for any powers 
to deal with. We see nothing in the Constitution that compels the 
Government to sit by while a food supply is cut ofl^ and the protec- 
tors of our forests and our crops are destroyed. It is not suffi- 
cient to rely upon the States. The reliance is vain, and were it 
otherwise, the question is whether the United States is forl)idden to 
act. We are of opinion that the treaty and statute must be upheld. 

Gary v. South Dalcota, 250 U. S. 118. 

Decree affirmed. 

Mr. Justice Van Devanter and Mr. Justice Pitney dissent. 



WASHINHTOX : (50VERNMENT miXTING OKFICE : 1920 



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